The ability to keep private communication between a survivor of human trafficking and their professional support system is critically important. However, knowing what communications are and are not privileged can be confusing. Across the United States, state laws on which communications are privileged vary widely and can be difficult to read.
CAST, in partnership with the University of Arkansas School of Law’s Human Trafficking Clinic created this resource intended to serve as a general overview of the types of privilege available in each state. It also includes the complete collection of statutes and rules pertaining to the state law privileged communications most likely to be relevant when working with human trafficking survivors. It uses easy-to-read tags to show which of these privileges are available by state. This resource is an excellent starting point to help those providing services to trafficked individuals to understand whether their communications with those individuals are likely to be protected and how to best protect them.
How to Access
Click on this link to open an account with AirTable to view the table. You are required to have an account with AirTable in order to access the table. You can also use this link, to create your own filters.
How to Use
Upon accessing the table, you will see a spreadsheet of all the opinions that CAST has currently collated and uploaded. On the left, you will see a “Views” button. Use this button to find filtered lists of specific filtered lists of privileges and what states may have them (e.g., Human Trafficking Case Worker, DV/SA Counselor, etc.). The video below provides a walkthrough of how to use the table.
If you have additional questions or need additional case support, submit a technical assistance request here.
This toolkit is for use by attorneys and legal representatives who are drafting client declarations in support of the T Visa application. If you are a survivor pursuing a T visa or a non-legal service provider, please connect with an attorney for assistance with the T visa.
Prior to Using this Rubric
This rubric is to be utilized after an attorney or representative has completed their first draft of a declaration following an interview with their clients. Client declarations should be in the T visa applicant’s voice.
Before utilizing this rubric, it is strongly recommended that users have completed training on the legal definition of “severe form of trafficking” and the T visa eligibility requirements. CAST’s Training and Technical Assistance team offers in-depth training on the definition of trafficking and the T visa eligibility requirements in free e-learning courses, which can be accessed here:
What is the T Visa Declaration Rubric and Why Should I Use it?
Rubrics are used to provide a framework for shared standards of review that strive to be objective. A rubric can help to put a reader and writer on the same page before providing feedback and facilitates constructive feedback.
The T Visa Rubric provides attorneys with a framework to help review declarations and assess where it may need to be strengthened. The goal of the rubric is to minimize instances where the declaration could be misinterpreted and result in a negative outcome for the T visa application.
This rubric helps attorneys to assess:
- The grasp of understanding of the T visa requirements;
- Ability to create a logical argument; and
- Ability to focus on legally relevant facts.
Download a fillable version of the rubric here.
How do I Use It?
In this rubric, there are seven specific sections the reviewer will be assessing:
- Severe form of trafficking
- Physical presence
- Law enforcement cooperation
- Extreme hardship
- Overall structure
Using a rubric allows the writer to know what is expected of them and allows the reviewer to have a set of clear guidelines to use when assessing. There is a specific level of assessment to evaluate each section in this rubric: Proficient, Developing, and Beginning. These levels are defined as follows:
- PROFICIENT – The writer has a strong grasp of the T visa eligibility requirements and the work needs little revision.
- DEVELOPING – The writer has an intermediate grasp of the T visa eligibility requirements and some work would need to be done prior to submission.
- BEGINNING – Entry level of understanding of the T visa eligibility requirements and the work would need substantial revision prior to submission.
If the writer has done a proficient job, all the listed items in the "proficient" box of that section will be evident. This applies also to the developing and beginning levels of assessment. The reviewer will do this for each of the sections and decide whether the writer is proficient, developing, or beginning.
The goal of this tool is to provide feedback on what needs improvement and what sections have been done well.
Client Drafting v. Attorney Drafting
CAST recommends that attorneys draft the client declaration through the interview approach using the client’s voice. Declarations written by the client may be subject to discovery in both criminal and civil proceedings. Thus, while having declaration drafts written by clients may be considered attorney work-product, the privilege may not be sufficient to keep a draft from being discovered in future litigation. Because of this, CAST has chosen to have the attorney draft the declaration after the interview. Having an attorney draft the declaration can avoid potential inconsistencies and other issues of privilege in the criminal and civil context if the draft declarations are successfully subpoenaed. This process is a choice in legal strategy. If an attorney decides to have the client draft their own declaration, the attorney can still use the rubric to ensure that all the eligibility requirements of the T visa are included.
Sometimes the interview process can take many hours or take multiple appointments depending on the client’s level of trauma and memory. CAST’s Training and Technical Assistance Team has created a sample interview outline for the declaration interviews. Download the outline here. Attorneys can use this outline to gather essential information.
For a sample declaration, click here.
Additional Tips for T Visa Declarations
- Avoid over-sensationalism to describe victimization
- Attorneys who are newer to working with crime victims may overly rely on the egregiousness of the abuse experienced by a trafficking survivor rather than focusing on facts that align with legal regiments. Egregious facts may distract from how the factual scenario is severe form of trafficking. For example, in a domestic violence/human trafficking crossover case, the physical abuse can be very brutal, but if the focus of the declaration is primarily on the brutality of the abuse rather than how the abuse was used to put the person in a condition of servitude, the case can be misinterpreted as a domestic violence case rather than a trafficking case.
- Always review facts for ambiguity or potential misinterpretation
- Don’t assume that the facts speak for themselves.
- Don’t assume the reviewing USCIS officer will see the case the way that the victims’ attorney sees it. It’s better to help the officer follow along the case in a step-by-step manner.
- Always use headers to separate the eligibility requirements within the declaration and number paragraphs
- These headers can serve as a quick checklist for USCIS officers to make sure all the requirements are addressed in the declaration.
- Numbering paragraphs will make it easy to reference the declaration in cover letters or motions.
- Consider consistency to other evidence submitted in support of the T visa
- The T visa does not require secondary evidence to be submitted outside of the declaration. However, if additional evidence is submitted, consider whether the client’s declaration will compete with that supporting evidence. For example, if a psychological evaluation that contains a factual summary of the applicant's victimization is submitted, the attorney should check whether the facts contradict the declaration.
New to the anti-trafficking field or T visas or just need to brush up? CAST has put together a robust and free list of resources for you to file effective T visa applications. Be sure to view our e-learning courses and review our practice advisories, as well! When you watch one of our e-learning courses and pass the accompanying self-assessment, you gain access to our Box drive with hundreds of samples and practice advisories on comprehensive legal remedies for trafficking survivors, from immigration to victims rights and restitution!Read more
Where do I find out the basics of filing a T visa?
How do I figure out whether my client is a victim of human trafficking?
The Ends-Means-Process (EMP) model is a tool mainly for use by attorneys and legal providers to help identify human trafficking and develop the legal theory of their client's case. However, other providers may use this tool to help identify potential trafficking victimization. If you are not an attorney or legal provider with attorney-client privilege, be mindful of how much information you need to collect in order to provide your services. For more information on privilege and confidentiality issues for social service providers, review our free course Privilege and Confidentiality for Social Service Providers.
Level of Involvement
Much of the terminology used in the EMP model is defined in the Trafficking Victims Protection Act under 22 USC § 7102. In order to use this model, it is strongly recommended that you receive additional training on the legal definition of trafficking, if you have not already. CAST’s free e-learning courses, which provide in-depth training on the definition of trafficking, can be accessed here:
Prior to Using this Toolkit
This model is meant to be utilized after you have done an initial intake/interview with your client and have facts available to analyze. This process is meant to be completed on your own and not with the survivor in front of you, and therefore may require a follow-up interview.
What is the EMP Model and Why Should I Use It?
The EMP model is to help attorneys and other providers apply the facts they’ve gathered from their client to see whether they are a victim of severe form of trafficking in persons as defined in the statute and regulations.
Many advocates are familiar with red flag indicators or checklists utilized in an attempt to identify whether an individual has been trafficked. However, over-reliance on these indicators has led to misidentification and sometimes, increased denials of certain types of cases. The EMP model was created to help minimize denials of severe form of trafficking in persons cases. This model helps clearly identify the facts legally relevant to the trafficking victimization and also helps identify any gaps in the facts so that attorneys can conduct a second client interview with a tailored focus. The boxes at the top can be utilized to store and sort the facts, while the checkboxes below help you to match the facts with the legal definition of severe form of trafficking.
Additionally, this tool aids attorneys in identifying the theory of their case so they have a framework prior to beginning work on the case.
Download the EMP model worksheet here.
How Do I Use It?
In creating the EMP model, CAST’s Training and Technical Assistance team flipped the traditional Action-Means-Purpose/Process-Means-Ends model to focus on the intentional actions the perpetrator took to put the victim in a situation of involuntary servitude, debt bondage, and/or sex trafficking.
Start with the “ends” by identifying the services or work the victim was required to perform. Once you identify the services, check off the box corresponding to the type of trafficking your client may have experienced. In working left to right, you might find that you will have to change your selection later.
Next move to the “means” column. In this section, you want to be as clear as possible about the actions the perpetrator took to make the victim perform the services you identified in the “ends” category. Be careful not to list all the abuses the client experienced at this time; rather, you should be specific as to the actions the perpetrator took that directly caused the victim to perform the work. In other words, while the other abuses may be horrific or traumatic, our goal at this time is to identify the specific actions that made the victim feel that failure to perform the services would result in serious harm. After you have identified the relevant facts, you can check off the appropriate box for force, fraud, or coercion. (Note: the “fraud” box has an asterisk because fraud alone may not be sufficient to prove involuntary servitude. For more information, view our e-learning course Human Trafficking Defined for Attorneys).
Now, you can move on to the “process” column. Here, you will identify the actions the perpetrator took to get the victim into the situation. Then, check off the corresponding box(es) next to the elements of the legal definition.
Finally, when you have completed all the sections, the “summarize” box helps you clearly articulate the trafficking experienced by your client. This summary sentence serves as a brief theory of the case and can be useful in crafting legal arguments for T visas or other motions!
Additional Analysis Tips
- Do not try to make facts fit into a specific category. If you don’t have the information to check off a box with certainty or are unsure how a fact is relevant, it is likely a sign that you need to interview your client a little more for additional information and clarification. Download a sample list of interview questions for attorneys here. You will not always get everything you need on the first interview; trafficking intakes can take more than one session and several hours to complete.
- If you have identified multiple potential perpetrators involved in the trafficking scheme (e.g., recruiter, lender, and employer), try to figure out which perpetrator is making the victim actually perform the services. If you can’t figure out who that perpetrator is, work through the EMP model by choosing just one of the actors as the perpetrator and seeing whether you can complete the worksheet.
- Human trafficking analysis gets easier with more practice and seeing a wide variety of cases. With time, the EMP model analysis will become intuitive.
Extreme hardship for T visa purposes is a higher standard than required by other immigration remedies; in the T context, the standard is "extreme hardship involving unusual and severe harm." 8 CFR § 214.11(i). Because of this higher standard, CAST recommends that applicants rely on at least three extreme hardship factors found in the T visa regulations at 8 CFR § 214.11(i)(2).Read more